57 Wis. 159 | Wis. | 1883
This is an action of ejectment to recover the possession of an undivided'three eighths of the tract of land described in the complaint, containing the usual averments. The answer is, first, a general denial; and, second, “ that if the said plaintiff ever had any cause of action against the defendant, the same is barred by the statutes of limitations.”'
As to the new trial tendered, it has been held by this court that a new trial granted on the payment of costs before an appeal, on the motion of the appellant, did not take away his right to appeal. Gutwillig v. Stumes, 47 Wis., 428. In such case he may waive his motion and appeal as if it had not been granted. Much less can an offer to correct the error, or submit to a new trial, affect the appeal or the right to appeal after the appeal has been taken. It is the appellant’s right to have the judgment reversed for this error, notwithstanding this offer, and we can see no other way than to reverse the judgment for this error of fact, and remand the cause to the circuit court for its correction.
From the record before us, this case would seem to have been very informally tried. The introduction of some of the deeds in the plaintiff’s chain of title was objected to on the ground that his action was barred by the statute of limitations. When the plaintiff had completed his evidence of title he then took upon himself to introduce in evidence a tax deed from the county of Lincoln to the defendant, dated April 27th and recorded April 28th of the year 1880, embracing the land in controversy, without objection on the part of the defendant, and then proceeded to show various defects in the assessment and other tax proceedings ante
It was in this negative way only that the defendant asserted any reliance upon this tax deed, either as evidence of title in himself or of title out of the plaintiff, under the general denial of the answer, or to show that the plaintiff’s action was barred by any statute of limitations. It was only thus incidentally and impliedly made known at the trial that the defendant relied upon the nine months' statute of limitations provided by sec. 7, ch. 334, Laws of 1878, in application to tax certificates and tax deeds as a bar to the plaintiff’s action. On the conclusion of the plaintiff’s evidence, the defendant made no affirmative or formal offer of this tax deed or any other, nor did he claim the bar of the statute in relation to' the same. The case was disposed of at thé circuit, and it is now presented by the ' briefs on both sides to this court, as if the defendant had offered in evidence both the tax certificate and tax deed for the purpose of showing that the nine months’ statute of limitations had
We think we may be warranted by the briefs on both sides in considering the case as presenting the question whether the answer is sufficient in this respect on demurrer ore tenue, by objection to any evidence under it at the trial showing that said nine months’ statute of limitations had run against the plaintiff’s action, although upon the record strictly this question may not be presented in the usual manner. The contention of the learned counsel of the appellant is that the tax deed put in evidence by the plaintiff shows that the action is barred by this statute. The contention of the learned counsel for the respondent on this point is that the defendant had not pleaded this statute of limitations. It is to be regretted that the learned counsel of the appellant has overlooked this question in his brief. The answer in this respect is scarcely an attempt to plead the statute of limitations. It cannot be made more definite and certain on motion under the statute, because no facts are alleged which could be made more definite and certain. No facts whatever are stated by virtue of which the legal conclusion that any statute of limitations had run against the
Whatever may have been the common law practice as to pleading the statute of limitations in actions of ejectment, in this state and many other states it is as necessary to plead the statute in such an action as in any other. The statute is general as to all actions which can be barred by the statute. “ The objection that the action was not commenced within the time limited, can only be taken by answer.” Sec. 4206, R. S. The only exception (if it can be called an exception) is where the facts, by which the statute operates as a bar, are sufficiently stated in the complaint. In such case the objection that the action was not commenced within the time limited may be taken by demurrer, and such demurrer is an answer, according to the opinion of Chief Justice DixoN in Howell v. Howell, 15 Wis., 55, within the meaning of the statute. This ruling very clearly shows that the mere mention of the statute of limitations is quite unimportant, but the facts which show that the statute has run in the action are material and essential; and it makes no difference whether such facts appear in the complaint or in the answer, so .that they are stated in the pleadings.
At common law the statute of limitations had to be pleaded specially, and all the facts to make the statute applicable must be specially and particularly stated. So strict was this rule that in Peck v. Cheney, 4 Wis., 249, the plea in assumpsit of non assumpsit infra sex annos was held bad when it should have been non aeeremt infra sex annos. In Whitney v. Marshall, II Wis., 174, the answer did not specifically claim the benefit of the statute of limitation of three years from the recording of the tax deed, but it set out
That the facts must be stated in the answer, which show that the statute of limitations has run against the action of the plaintiff, unless such facts are stated in the complaint, is not an arbitrary rule, but a reasonable one. The plaintiff ought to be apprised of the facts upon which the defendant relies, for the operation of the statute, so as to be ready to meet the evidence, and in order to show the particular statute of limitations relied upon. In this case, not only are no facts stated, but the particular statute is not even stated as a general conclusion,-— whether the twenty years’, three years’, or nine months’, or the limitation where i persons are under disability. We have been thus particular, and perhaps tedious, on this point, because there seems to have been some question about the rule in such cases. There was no finding upon the question, and no objection or exception because the court failed to find whether the action was or was not barred by the statute of limitations. Whatever the facts may have been, it is quite clear that on the pleadings there was no such issue, so that, on the general merits of the case, the findings, supported by the evidence, warranted the judgment, and it would have been affirmed had there been no
By the Court.— The judgment of the circuit court, is reversed, and the cause remanded, with direction to correct the finding and judgment by making the interest of the plaintiff in the tract of land described in the complaint-three eighths instead of five eighths.